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Lawmakers, It’s Your Move Now

Happy Independence Day everyone. I hope it’s filled with barbecues, pools and fireworks. Though I imagine for some, they’re not feeling particularly patriotic after recent U.S. Supreme Court decisions.

Whatever one might think of the decision made by the justices that overturned previous Supreme Court rulings in regard to abortion, it’s done. Now West Virginia lawmakers will need to figure out what they want to do. And with the Republican supermajority, that could be pretty extreme.

As I’ve reported, West Virginia already has a pretty tough law that makes providing an abortion a felony, a law that was carried over in 1863 when West Virginia was founded from a Virginia law from 1849. While it does provide an exception for saving the life of the mother, it’s unclear if the law would punish doctors or also punish the women seeking the procedure.

A federal court blocked enforcement of the law in 1975 because of Roe v. Wade, but now that Roe has been thrown out the window, Attorney General Patrick Morrisey has an advisory opinion out that says the law is back in effect. As a result, the state’s only dedicated abortion clinic has halted all abortions as long as that law remains on the books.

As long as the law is in place, it is going to have unintended consequences. The state already has a shortage of medical professionals as it is. I suspect you might see some OBY-GYNs head to the exits. It certainly could exacerbate the state’s population loss. And what constitutes an abortion? That’s not as clear-cut as you might think. Example: if a doctor has to remove a dead fetus in the womb, does that count? That’s not technically a miscarriage.

Sure, prosecutors can use discretion when bringing charges depending on the circumstances, but what doctor is going to take the chance? That’s the issue with abortion. While people have images of young women waiting at an abortion clinic, these decisions are most often made between women and their doctors, and the decisions are not made lightly.

The most recent statistics I’ve seen show that most abortions happen prior to 15 weeks. While there are anecdotal stories of women needing/wanting an abortion after 20 weeks, most have their abortions fairly early in the process. And based on the most recent stats available, there might be between 1,000-1,500 abortion procedures in the state in a given year.

So, what will lawmakers do? They definitely have to do a full-on update of abortion laws. Will they allow for limited access to abortion, such as Virginia is doing under Republican Gov. Glen Youngkin by seeking a 15-week ban? Or will West Virginia do a full ban with certain exceptions? I think at the very least lawmakers should look at the old felony law. Even officials with West Virginians for Life think perhaps that law goes too far.

It’s easy to write West Virginia off as a pro-life state, but if a good poll was done, I suspect people would have more complicated thoughts. I have rarely encountered anyone in favor of late-term or partial birth abortions. And outside of the activist class, I’ve not encountered even supporters of abortion access being in favor of access at any stage of pregnancy.

Keep in mind, the 2018 vote for an amendment to the state Constitution that added language stating that the constitution offers no right to an abortion passed narrowly by 3 points. Voter turnout that year was 47.9%, so we’re not talking about light turnout. Lawmakers should keep that in mind if there is a special session on abortion prior to November’s general election.

***

This July 4, allow me to offer a brief civics lesson. The Supreme Court’s decision in Dobbs that upended Roe v. Wade did not ban abortion. It simply put the ball back in the hands of Congress and state legislatures to decide.

The Supreme Court decision in West Virginia v. EPA did not prevent efforts at addressing climate change or regulating greenhouse gasses. It simply, again, put decisions on how to address those issues back in the hands of Congress.

We have three branches of government. The legislative branch makes the laws, the executive branch enforces the laws and the Supreme Court interprets the laws. And contrary to popular belief, the three branches are not co-equal. Congress is the most important branch in our federal system.

Unfortunately, many members of Congress are more interested in owning the libs or conservatives, goosing their social media followings or being on TV. Many would rather introduce bills to virtue signal to their bases than pass legislation.

As a result of Congress abdicating its authority, presidents from both political parties have expanded the use of executive orders or expanded the administrative state within federal agencies. Or people have leaned on the federal judiciary to “interpret” laws based on public opinion rather than by what the law says.

At any time after Roe v. Wade came down in the 1970s, Congress could have codified Roe v. Wade. There were plenty of Democratic majorities over the last 50 years that had the votes to make this happen. In many ways, Roe created the modern conservative movement. Roe taught them they needed to get more conservatives justices on the court.

Who did they learn that from?

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